2 Law Students Get a Lesson on the First Amendment, Complete With Subpoenas

Luke Herrine, left, and Leo Gertner were subpoenaed by a trustee at New York University’s School of Law, who also owns two nursing home companies, after they publicly criticized his labor practices.

Nicole Bengiveno / The New York Times

April 30, 2014

Gotham

By MICHAEL POWELL

Let’s give credit where due: A New York University Law School trustee has devised a terrific First Amendment lesson for students.

The trustee, Daniel E. Straus, owns two nursing home companies and is fighting to cut back on sick and vacation days, freeze pensions and demand higher health co-pays for low-wage workers in Connecticut. In New Jersey, he is opposing unionization efforts. The federal labor board has found his company committed more than three dozen labor law violations, and a federal judge recently held one of his companies in contempt.

He heard that two New York University law students supported a union strike to oppose the cuts. These students had circulated a letter taking him to task and requesting a meeting with the law school dean.

Let’s turn the story over to Leo Gertner, a first-year law student. He heard his buzzer ring some weeks ago. At his door, he found a process server, who handed him a federal subpoena.

He rifled through the papers. The subpoena demanded that he produce every one of his emails, text messages, social media postings, letters, notes, diary entries, anything related to his support for this labor union, 1199 SEIU, and its workers.

It also demanded that he produce anything he wrote in relation to any march or discussion with university officials. All was fair game.

The subpoena came courtesy of Mr. Straus, the nursing home magnate, developer and law school trustee.

Mr. Gertner, a red-haired fellow with a neatly trimmed beard, shook his head. He was sitting in the Third Rail coffee shop with Luke Herrine, a second-year student who received a nearly identical subpoena.

“Someone involved in violating labor laws and sending out subpoenas to check student speech is not someone who should be making policy for a public-spirited law school,” he said.

Mr. Straus underwrites the Straus Institute for the Advanced Study of Law and Justice at New York University School of Law, to the tune of more than $1 million per year. (The institute will close after this academic year.)

The institute this year focused on “racial, ethnic and economic segregation.” It’s not clear if union struggles fit into that curriculum. Mr. Herrine smiled, wanly. “The dissonance doesn’t seem to trouble him,” he said.

None of the so-called adult parties have taken courage showers here. Mr. Straus’s company has filed a civil racketeering lawsuit, saying that by seeking to bring pressure on all fronts, the union is behaving like a collective gangster.

In that regard, his spokeswoman said that Mr. Straus is not really targeting the students. She framed it as a sort of legal lesson: “We are hopeful to be able to obtain the relevant information in a cooperative manner with as little inconvenience to the students as possible.”

That is very sweet of them, if you don’t think about it.

Then there’s New York University School of Law, which notes on its website that “N.Y.U.’s goal is for all graduates to incorporate public service into their careers.”

The university has paid for the students’ lawyers. It released a statement that notes its “fundamental concern” for the students’ welfare and their right to engage in lawful protests.

“Naturally,” the law school wrote, “it is a matter of concern to us for any of our students to be subpoenaed.” But — alas, this pivot felt inevitable — the university said that “in keeping with the law school’s stance of noninvolvement” in the litigation between Mr. Straus’s company and the union, it was leaving the case to the courts.

This defines weak tea. It fell to the American Civil Liberties Union of New Jersey Foundation to file an amicus brief making a point that, once upon a time, seemed second nature to some university leaders.

“There is no doubt that N.Y.U. students enjoy a constitutionally protected right” to discuss Mr. Straus and his union troubles, this brief said. “He is an N.Y.U. Law School trustee, whose business behavior, argue the students, reflects on the law school itself.”

Mr. Herrine and Mr. Gertner go a step further. They note that some of the issues might intrigue a university. Clearly larceny or money laundering would knock someone off the board of trustees. So what about sustained, repeated labor law violations? (Mr. Straus’s spokesman said that his company was appealing these findings.)

“There are underlying moral questions,” Mr. Herrine said. “But there’s also the question of violations of the law, and which laws matter and which don’t.”

Mr. Straus’s lawyers accuse the union of conspiring with students to “embarrass,” “shame” and “publicly denigrate” him. You might argue that Mr. Straus has done a good job of this on his own.